Cotran v. Rollins Hudig Hall International, Inc.

MOSK, J., Concurring.

I agree with the majority’s holding that the term “good cause” in this context is generally a reasoned conclusion that the employee committed the misconduct, “supported by substantial evidence gathered through an adequate investigation that includes notice of the claimed misconduct and a chance for the employee to respond.” (Maj. opn., ante, at p. 108.) Although I believe that there are substantial public policy considerations weighing in both the employer’s and the employee’s favor in this case, the majority’s standard best approximates, in my view, the likely bargain struck by an employer and an employee in an implied contract not to terminate except for good cause. Absent evidence to the contrary, we cannot presume that an employer’s implied, general promise not to discharge an employee without “good cause” is a promise to achieve such a high degree of certainty that the employee committed the charged misconduct as to ensure invariable agreement by a jury.

I write separately to make three points. First, “substantial evidence” that the employee committed misconduct is not synonymous with “any” evidence. The ultimate determination is whether a reasonable employer could have found that an employee committed the charged misconduct based on all *110 the evidence before it. (See Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633 [ 29 Cal.Rptr.2d 191 ].) Similarly, the requirement that an employee receive notice and an opportunity to be heard is not fulfilled by a charade of due process by an employer that has already made up its mind, but rather signifies “adequate notice of the ‘charges’ . . . and a reasonable opportunity to respond.” (Pinsker v. Pacific Coast Society of Orthodontists (1974) 12 Cal.3d 541, 555 [ 116 Cal.Rptr. 245 , 526 P.2d 253 ], italics added, fn. omitted.) Although we do not dictate the precise form that the employer must adopt, fair procedure requires that the employee have a truly meaningful opportunity to tell his or her side of the story and to influence the employer’s decision.

Second, there is nothing, of course, in the majority’s standard that precludes an employer and an employee from negotiating or impliedly forming a contract with a “good cause” clause that defines that term more explicitly, in which case the jury’s good cause determination would be shaped by this contractual definition. For example, the employment contract may spell out in greater detail the due process protections enjoyed by the employee. (See, e.g., Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 460-461 [ 46 Cal.Rptr.2d 427 , 904 P.2d 834 ].) A court may also reasonably interpret an implied or express employment agreement that contains particularly strong promises of employment security to embody a more protective good cause standard. In short, the majority’s definition of “good cause” is a “default” definition that applies only in the absence of more specific contractual provisions.

Third, I note that nothing in the majority opinion is intended to alter the different manner in which the term “good cause” is construed by arbitrators pursuant to a collective bargaining agreement between unions and employers. In such agreements the contract is express, the remedies more limited, the role of the arbitrator in policing collective bargaining agreements well established both contractually and customarily, and the contractual language supplemented by a well developed body of arbitration law concerning the meaning of “good cause” that the parties can be presumed to be aware of at the time they entered the agreement. (See generally, Sanders v. Parker Drilling Co. (9th Cir. 1990) 911 F.2d 191, 204, 212, fn. 11 (dis. opn. of Kozinski, J.).) The majority’s good cause standard does not extend beyond the context in which it is articulated, i.e., implied contracts between employers and individual employees.

Werdegar, J., concurred.